TRIPS and Consumer Protection

Abstract

Consumer protection plays an increasingly important role in intellectual property law, both as an objective of legislation and as an argument in the political debate. Consumer interests may be protected by intellectual property law, but consumers may also need protection against excessive protection and enforcement. While the TRIPS Agreement does not explicitly mention consumer interests, Articles 7 and 8 provide a basis for taking them into account in the course of interpretation. This chapter identifies three levels of interaction between intellectual property law and consumer interests. First, the interests of users in general and of consumers in particular are one factor in the welfare balance which underlies intellectual property law. Secondly, consumers may be affected in their role as users of intangible subject-matter. Thirdly, some areas of intellectual property law, most notably trade mark law, protect the consumers’ decision making process against distortion. The chapter concludes that while consumer interests have rightly entered the intellectual property arena, they are too often instrumentalised by both intellectual property optimists and pessimists.